Lazarus v. Allied Finishing Specialties Co.

Full title: Jack Lazarus, Trading as Crescent Bronze Powder Company, Appellee, v…

Court: Appellate Court of Illinois, First District

Date published: Dec 9, 1942

45 N.E.2d 516 (Ill. App. Ct. 1942)

45 N.E.2d 516

Opinion

Gen. No. 41,910.

Opinion filed December 9, 1942.

1. APPEAL AND ERROR, § 76^_ — right of appeal from part of decree fixing costs. While appeal does not lie from findings of fact any more than from verdict, defendant is entitled to appeal from that portion of decree, fixing costs, which he considers adverse.

_ See Callaghan's Illinois Digest, same topic and section number.

2. APPEAL AND ERROR, § 1668^fn_ — when assessment of costs will be sustained by Appellate Court. Assessment of costs by trial court will not be disturbed by Appellate Court when, under circumstances, Appellate Court cannot say that trial court abused its discretion in matter.

3. APPEAL AND ERROR, § 1057^fn_ — scope of review on appeal from part of decree. Where appellant appealed from part of decree, as he had right to do, and record of entire case therefore was properly before Appellate Court, such court had right to consider whatever other matters were duly raised and ruled on by trial court.

4. INJUNCTIONS, § 172^fn_ — what are issues where plaintiff sued for injunction and for damages for conspiracy to injure plaintiff's business. Where plaintiff sued for injunction and damages for alleged conspiracy to injure his business, relief sought required proof of two elements, namely, conspiracy and damage.

5. APPEAL AND ERROR, § 1741^fn_ — when findings of fact in injunction suit should not stand. Where findings of fact in suit for injunction and damages amount to no more than unnecessary exposition of defendant's moral aberrations, they serve no legal purpose and should not stand.

6. PLEADING, § 183^fn_ — findings of fact in decree as improper. Findings of fact have no proper place in decree dismissing bill for want of equity.

Appeal by defendant from the Superior Court of Cook county; the Hon. JOHN C. LEWE, Judge, presiding. Heard in the third division of this court for the first district at the October term, 1941. Decree affirmed as modified. Opinion filed December 9, 1942.

MILTON H. and EDWARD W. WEISS, both of Chicago, for appellant.

CHAPMAN, SILVERBERG ANIXTER, of Chicago, for appellee.

MR. JUSTICE, KILEY delivered the opinion of the court.

The defendant Schwartz appeals from part of the decree dismissing the complaint for want of equity, and from the order denying his motion to modify the decree.

Plaintiff sued for an injunction and for damages arising out of an alleged conspiracy on the part of the defendants to injure his business. The master found that there was a conspiracy; that plaintiff was damaged; that Schwartz had testified falsely and had admitted doing so; and recommended issuance of the injunction restraining defendant from using the name "Crescent Bronze Paint Works," or any similar name containing the words, "Crescent Bronze" and that nominal damages be assessed against Schwartz. The decree recited substantially the same findings, but found the plaintiff had sustained no damage, the injunction not warranted, and ordered the master's report confirmed in part and overruled in part; ordered the complaint dismissed for want of equity, and the costs divided equally against plaintiff and Schwartz. Schwartz thereafter moved to modify the decree by expunging the findings of fact. The order was denied.

The issues here are whether Schwartz can appeal from a decree in his favor, whether findings in a decree are appealable, whether findings in this decree should be expunged and whether costs were properly assessed.

While an appeal does not lie from findings of fact, any more than from a verdict, defendant is entitled to appeal from that portion of the decree, fixing the costs, which he considers adverse. Under the circumstances in this case, where the proceedings were somewhat extended, probably by reason of the equal efforts of the plaintiff and Schwartz, we cannot say that the trial court abused its discretion in assessing the costs and, therefore, we believe the assessment made by the trial court was proper. Since Schwartz had the right to appeal from part of the decree, and the record of the entire case therefore being properly before us, we have a right to consider whatever other matters were duly raised and ruled upon by the trial court. We are, therefore, entitled to consider whether the trial court ruled properly on Schwartz' motion to modify.

Plaintiff sought injunctive relief and damages on the basis of an alleged conspiracy. The relief sought required proof of two elements, — the conspiracy and plaintiff's damage. The element of damages was not proved, there was proof alone of nonactionable conspiracy. The findings of fact in this case amounted to no more than an unnecessary exposition of Schwartz' moral aberrations, they serve no legal purpose and should not stand. It has been held by this court that findings of fact have no proper place in a decree dismissing a bill for want of equity. Hibbard v. Mallers, 184 Ill. App. 474.

The decree will be modified by striking out the findings of fact and, as modified, it is hereby affirmed.

Decree affirmed as modified.

BURKE, P.J., and HEBEL, J., concur.